BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 122|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
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THIRD READING
Bill No: SB 122
Author: Jackson (D) and Hill (D), et al.
AmendedAmended:6/1/15
Vote: 21
SENATE ENVIRONMENTAL QUALITY COMMITTEE: 5-1, 4/15/15
AYES: Wieckowski, Hill, Jackson, Leno, Pavley
NOES: Gaines
NO VOTE RECORDED: Bates
SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/28/15
AYES: Lara, Beall, Hill, Leyva, Mendoza
NOES: Bates, Nielsen
SUBJECT: California Environmental Quality Act: record of
proceedings
SOURCE: Author
DIGEST: This bill authorizes concurrent preparation of the
record of proceedings while a lead agency is conducting an
environmental review on a project subject to the California
Environmental Quality Act (CEQA) and expands the Office of
Planning and Research's (OPR's) central database of CEQA
documents.
ANALYSIS:
Existing law, under CEQA:
1) Requires lead agencies with the principal responsibility for
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carrying out or approving a proposed discretionary project to
prepare a negative declaration, mitigated negative
declaration, or environmental impact report (EIR) for this
action, unless the project is exempt from CEQA (CEQA includes
various statutory exemptions, as well as categorical
exemptions in the CEQA guidelines). (Public Resources Code
(PRC) §21000 et seq.).
2) Establishes a procedure for preparing and certifying the
record of proceedings for an action against a public agency
on the grounds of noncompliance with CEQA. (PRC §21167).
3)Requires the lead agency to submit to the State Clearinghouse
a sufficient number of copies of specified environmental
review documents and a copy in an electronic form under
specified circumstances. (PRC §21082.1).
4) Requires OPR to establish and maintain a database to assist
in the preparation of environmental documents. (PRC
§21159.9(b)).
5) Requires OPR to establish and maintain a central repository
for the collection, storage, retrieval, and dissemination of
specified notices and make those notices available through
the Internet. (PRC §21159.9(c)).
This bill:
Concurrent preparation of the record of proceeding
1)Requires the lead agency, upon written request by a project
applicant and with consent of the lead agency, to concurrently
prepare the record of proceedings with the administrative
process.
2)Requires all documents and other materials placed in the
record of proceedings to be posted on a Web site maintained by
the lead agency.
3)Requires the lead agency to make publicly available, in
electronic format, the draft environmental document, and
associated documents, for the project.
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4)Requires the lead agency to make any comment publicly
available electronically within five days of its receipt.
5)Requires the lead agency to certify the record of proceedings
within 30 days after filing notice of determination or
approval.
6)Requires certain environmental review documents to include a
notice, as specified, stating that the document is subject to
this section.
7)Requires the applicant to pay for the lead agency's cost of
concurrently preparing and certifying the record of
proceedings.
State Clearinghouse database system for CEQA documents
8)Requires OPR to establish and maintain a database for the
collection, storage, retrieval, and dissemination of
environmental documents and notices prepared pursuant to CEQA
and to make the database available online to the public.
9)Requires OPR to submit a report describing the implementation
of the database to the Legislature by July 1, 2016, and a
status report by July 1, 2018.
Background
1)CEQA: The environmental review process. A CEQA environmental
review document is a public document. It provides for
transparency as well as an opportunity for citizens to comment
on the document and participate in the environmental review
process.
CEQA provides a process for evaluating the environmental effects
of a project, and includes statutory exemptions as well as
categorical exemptions in the CEQA guidelines. If a project
is not exempt from CEQA, an initial study is prepared to
determine whether a project may have a significant effect on
the environment. If the initial study shows that there would
not be a significant effect on the environment, the lead
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agency must prepare a negative declaration. If the initial
study shows that the project may have a significant effect on
the environment, then the lead agency must prepare an EIR.
Generally, an EIR must accurately describe the proposed project,
identify and analyze each significant environmental impact
expected to result from the proposed project, identify
mitigation measures to reduce those impacts to the extent
feasible, and evaluate a range of reasonable alternatives to
the proposed project. Prior to approving any project that has
received an environmental review, an agency must make certain
findings. If mitigation measures are required or incorporated
into a project, the agency must adopt a reporting or
monitoring program to ensure compliance with those measures.
If a mitigation measure would cause one or more significant
effects in addition to those that would be caused by the
proposed project, the effects of the mitigation measure must
be discussed but in less detail than the significant effects
of the proposed project.
2)What is analyzed in an environmental review? Pursuant to
CEQA, an environmental review analyzing the significant direct
and indirect environmental impacts of a proposed project, may
include water quality, surface and subsurface hydrology, land
use and agricultural resources, transportation and
circulation, air quality and greenhouse gas emissions,
terrestrial and aquatic biological resources, aesthetics,
geology and soils, recreation, public services and utilities
such as water supply and wastewater disposal, cultural
resources such as historical and archaeological resources, and
tribal cultural resources.
The analysis must also evaluate the cumulative impacts of any
past, present, and reasonably foreseeable projects/activities
within study areas that are applicable to the resources being
evaluated. A study area for a proposed project must not be
limited to the footprint of the project because many
environmental impacts of a development extend beyond the
identified project boundary. Also, CEQA stipulates that the
environmental impacts must be measured against existing
physical conditions within the project area, not future,
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allowable conditions.
Comments
1)Purpose of bill. According to the authors:
[CEQA] ensures that state and local agencies make informed
decisions when undertaking projects that may impact the
environment. Stakeholders have voiced concern that the
current CEQA process can be cumbersome and inefficient. In
May 2014, the Senate Judiciary and Environmental Quality
Committees sent a joint letter to a broad range of CEQA
stakeholders - developers, business, environmental, and labor
groups, planners, local governments, and academics - asking
for community input on how to improve the process without
undercutting the statute's goal of fostering informed
environmental decisionmaking. Drawing upon stakeholder
responses to that letter, this bill will enact [two]
substantive changes to CEQA that will help expedite the
process while protecting the integrity of the act.
First, it will authorize lead agencies to concurrently prepare
their administrative records while going through the CEQA
process, rather than after the process has concluded. Second,
it will improve the accessibility of CEQA related documents by
expanding the use of California's online CEQA State
Clearinghouse.
During the Senate Judiciary Committee hearing last year on SB
1451 (Hill and Roth) regarding CEQA "document dumping,"
Senator Jackson and Senator Hill agreed to explore ways to
improve the CEQA process in conjunction with the broader CEQA
community. As part of that effort, they sent a joint letter
to CEQA stakeholders asking for community input on how to
improve the process without undercutting the statute's goal
of fostering informed environmental decisionmaking. The
Senate Environmental Quality and Judiciary Committees
received 13 responses from stakeholders who collectively
represent a cross-section of the CEQA community. Two broad
consensus recommendations emerged from these 13 responses,
and many community members indicated that these two
recommended changes would greatly improve the CEQA process:
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concurrent preparation of the record of proceedings and a
centralized database for CEQA documents.
2) Concurrent preparation of the record of proceedings.
a) Potential time-saver for post-decision CEQA challenge.
SB 122 provides the option of preparing the record of
proceedings during the CEQA environmental review process in
order to save time and effort in the event of a
post-decision CEQA challenge. Depending on factors such as
the complexity and length of the environmental review,
preparation can take multiple months. However, in
situations where an agency believes a project is likely to
be challenged, it is probably more efficient and
expeditious if the record is prepared concurrently with the
preparation of other project-specific environmental
documents. Additionally, concurrently prepared records may
be more defensible in court, given that they are not
post-hoc recreations assembled some time (potentially
several months) after the relevant CEQA decision is made.
Concurrent preparation is not specifically prohibited under
existing law, but it has only been expressly authorized for
certain projects (e.g. AB 900 (Buchanan and Gordon, Chapter
354, Statutes of 2011), environmental leadership
development projects (ELDPs)). Providing public agencies a
general authorization to engage in concurrent preparation
may take away any uncertainty on the matter and make a
public agency more likely to adopt the practice for
appropriate projects.
b) Time is money. In general, preparation of the record
of proceedings begins after a lawsuit is filed and the
petitioner pays. This can result in a substantial amount
of time to go by before there is any resolution.
One issue that some CEQA stakeholders contend is that CEQA
litigation delays projects. As noted above, the
concurrent preparation of the record of proceedings can
save the project applicant several months of delay. It
seems logical and reasonable that the beneficiary of an
action should pay for that action to occur.
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If a project applicant believes that litigation is
inevitable, it may behoove that entity to ask the lead
agency to prepare the administrative record in conjunction
with the environmental review process - the efficiency of
simultaneous preparation can possibly save months of time
preparing for litigation, such as tracking down and
collecting documents to add to the administrative record.
For example, under AB 900, five project applicants have/are
utilizing concurrent preparation process as an ELDP.
Those projects had to meet stringent standards in order to
be an ELDP and benefit from AB 900's provisions, including
concurrent preparation of the administrative record for
which the project applicant pays.
SB 122's concurrent preparation provision is discretionary
and not mandatory. If an applicant has no reason to
believe that its project will be subject to litigation,
then the applicant may choose not to utilize this option.
3) Increase use of Internet resources - The State Clearinghouse.
The authors state, "[OPR] operates a limited online CEQA
repository (called "CEQAnet") as part of the State
Clearinghouse used for state-level review of environmental
documents. This second component of this bill will direct
OPR to expand its online CEQA repository to include copies of
all CEQA documents in a single repository, forming a true
statewide CEQA clearinghouse."
Many CEQA stakeholders have noted that the CEQA process makes
poor use of internet resources for distributing information,
providing notice to affected parties, and facilitating the
submission of comments. The current CEQA process is still
largely paper-based, and information that is posted online is
often buried deep within agency or project proponent Web
sites. Currently, OPR has operates a limited online CEQA
repository as part of the State Clearinghouse used for
state-level review of environmental documents. This bill
proposes to expand OPR's clearinghouse to include copies of
all CEQA documents in a single, electronic database system,
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which would be available via the Internet and to the public.
Stakeholders believe such a resource would greatly expedite
the CEQA process by eliminating transmission times for
relevant documents. In addition, universal accessibility of
such a resource would make it much harder to justify last
minute "document dumps."
A fully functioning clearinghouse would provide California
residents with an easy to use, universal point of entry into
the CEQA process, furthering the policy of transparency and
public participation in the environmental review process.
4) Proposed central database: potential cost savings. Expanding
OPR's CEQA database would require a financial commitment by
the state, but it is likely that any new costs could be
offset by reductions in agency staff time and resources used
to distribute paper-based materials. Last year, the
California Research Bureau (CRB) researched CEQA-related
document handling costs for selected state agencies and
looked into issues such as clerical document management and
preparation and delivery costs. According to CRB:
We estimate that the cumulative annual cost to State
entities in staff time commitments for clerical processing
and handling of CEQA-related documents exceeds $250,000 and
may easily be in excess of $500,000, with additional
expenditures for materials, supplies, and delivery
services. Not all of these staff expenditures are truly
avoidable costs, as few State entities delegate any
clerical staff full-time to CEQA-related document handling
functions. But it appears plausible that an effective,
electronic document management system and web-based
application for CEQA-related document submission and
retrieval by Lead Agencies and Reviewing Agencies could
generate cost savings across the state.
Under CEQA, the Legislature declares the policy of the state
shall be that "All persons and public agencies involved in
the environmental review process be responsible for carrying
out the process in the most efficient, expeditious manner in
order to conserve the available financial, governmental,
physical, and social resources with the objective that those
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resources may be better applied toward the mitigation of
actual significant effects on the environment." (PRC
§21003(f)). SB 122 proposes to help move CEQA forward by
utilizing technology that was not present when CEQA was
originally established.
Related/Prior Legislation
SB 1451 (Hill and Roth, 2014) would have expanded CEQA's
exhaustion requirements by precluding an individual from
challenging a public agency's compliance with the Act if the
alleged grounds of noncompliance were known or could have been
known with the exercise of reasonable diligence during the
public comment period, but the alleged grounds of noncompliance
were presented to the public agency at a time other than during
the public comment period. The bill also would have expanded
CEQA's exhaustion requirements by precluding a person from
challenging a public agency's compliance if the person objected
to the approval of the project at a time other than during the
public comment period when a public comment period was provided.
SB 1451 died in Senate Judiciary Committee.
SB 731 (Steinberg and Hill, 2013) would have enacted the "CEQA
Modernization Act of 2013," making various clarifications and
revisions to CEQA, including requiring the lead agency, at the
request of a project applicant, to prepare and certify the
record of proceedings concurrent with the administrative process
for certain environmental documents under certain conditions.
SB 731 died in Assembly Local Government Committee.
AB 37 (Perea, 2013) would have required the lead agency, upon
request of a project applicant, to prepare and certify the
record of proceedings concurrently with the administrative
process for projects subject to CEQA review. AB 37 was
subsequently amended to address integrated regional water
management plans and was eventually placed on the Senate
Inactive file.
SB 984 (Simitian, 2012) would have required a lead agency to
prepare and certify the record of proceedings concurrent with
the administrative process for certain environmental documents
under certain conditions, and would have sunsetted January 1,
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2016 (contingent enactment with AB 1570 (Perea)). SB 984 died
on the Senate Floor.
AB 1570 (Perea, 2012) contained provisions relating to
certification of the record of proceedings concurrent with the
administrative process for certain environmental documents under
certain conditions, and would have sunsetted on January 1, 2016
(contingent enactment with SB 984 (Simitian)). AB 1570 died in
Senate Rules Committee.
AB 900 (Buchanan and Gordon, Chapter 354, Statutes of 2011)
established CEQA administrative and judicial review procedures
for an environmental leadership development project, including a
requirement for concurrent preparation of the administrative
record.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
According to the Senate Appropriations Committee:
One-time costs of $200,000 from the General Fund to establish
the database at the Office of Technology, including necessary
training.
Ongoing costs of $45,000 from the General Fund to the Office
of Technology to host and update the database. These costs
may be offset by savings to various special funds and the
General Fund for reduced administrative costs to state lead
agencies.
One-time costs of $20,000 from the General Fund to OPR to
provide training for lead agencies on the new database.
Unknown costs to state agencies, to the extent they are the
lead agency under CEQA, to concurrently prepare the record of
proceeding (various special funds and General Fund). These
costs should be fully reimbursed by project applicants who
request the record of proceedings to be prepared concurrently
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with the administrative process.
SUPPORT: (Verified5/28/15)
Association of Environmental Professionals
Brandt-Hawley Law Group
California Labor Federation
California League of Conservation Voters
Center for Biological Diversity
Chatten-Brown & Carstens
Natural Resources Defense Council
Shute, Mihaly & Weinberger LLP
State Building and Construction Trades Council
OPPOSITION: (Verified5/28/15)
Associated General Contractors of California
Association of California Cities, Orange County
Association of California Water Agencies
Bay Area Council
Bay Planning Coalition
California Business Properties Association
California Business Roundtable
California Construction and Industrial Materials Association
California Retailers Association
Central City Association of Los Angeles
Engineering Contractors' Association
Harbor Association of Industry & Commerce
Humboldt Association of REALTORS
Los Angeles Area Chamber of Commerce
Los Angeles County Economic Development Corporation
National Federation of Independent Business
Orange County Business Council
Pleasanton Chamber of Commerce
San Diego Regional Chamber of Commerce
San Francisco Chamber of Commerce
San Gabriel Valley Economic Partnership
San Mateo County Association of REALTORS
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Santa Clara Chamber of Commerce
Santa Clarita Valley Economic Development Corporation
Sonoma County Alliance
Southern California Water Committee
Southwest California Legislative Council
UnitedAg
Valley Industry & Commerce Association
West Coast Lumber and Building Materials Association
ARGUMENTS IN SUPPORT: A coalition of support states, "One
concern raised with respect to CEQA is the delay associated with
litigation. In our experience preparation of the administrative
record is usually the most time consuming part of CEQA
litigation in the trial court. Section 1 of the bill would
allow project applicants to request preparation of the record
concurrent with the administrative review process. Because most
environmental documents are already available in an electronic
format, this option could be easily implemented and would reduce
the time needed to prepare the record if litigation is filed.
Although we support the concept of concurrent preparation,
because this is an option available at the project applicant's
discretion, the bill should ensure that the cost of such
preparation is borne by the project applicant?Section 2 would
require electronic posting of notices and environmental
documents. This amendment is a critical reform that will
modernize CEQA and make the environmental review process more
transparent."
ARGUMENTS IN OPPOSITION: A coalition of opposition states,
"SB 122's concurrent preparation of the administrative record
process will rarely-if ever-be utilized because it would impose
new, unrecoverable costs on the project applicant and expose
applicants to new delays and litigation. Under existing law, it
is well-settled that the petitioner must pay the costs of
preparing the administrative record during CEQA litigation or
claims. SB 122 allows project applicants to request concurrent
preparation of the record, but if such request is made, the cost
of preparing the administrative record - which could range in
the hundreds of thousands - would shift entirely to project
applicants as unrecoverable costs. Equally concerning is the
provision that would require real-time electronic posting of the
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contents of the administrative record as they are compiled. The
administrative record contains incomplete documents that
inevitably morph into much improved final documents as a result
of the iterative process that CEQA requires. This provision
would hinder forward progress of the administrative process by
allowing the public to submit premature and unnecessary comments
and objections to draft documents that have not yet even been
corrected, improved, and finalized through the lead agency's
internal review process."
Prepared by:Joanne Roy / E.Q. / (916) 651-4108
6/1/15 18:50:14
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